Intellectual property and decriminalization: Don't have to wait for laws to be changed

Anand Grover is a lawyer from India who is known for his legal activism in Indian law relating to HIV. He is a co-founder member of the Lawyers Collective and has been UN Special Rapporteur on the Right to Health since 2008. He spoke with the ICAAP11 Insight team as the 11th International Congress on AIDS in Asia and the Pacific (11th ICAAP) got underway, stressing two points that are likely to feature in discussions this week.

“States have not used TRIPS  flexibilities to increase access to essential and affordable medicines. So what prevents us from using all the flexibilities that are available under the TRIPS? Some countries have started to change their laws, but we need to use all the flexibilities available such as filing pre-/post-grant patent oppositions, counter pleas etc,” said Mr Grover.

Promotion of domestic drug production and pooled procurement are key to unlocking more equitable access to essential and affordable medicines.

“Asia-Pacific countries, especially the larger countries, should pool their resources and try to procure commonly used generic antiretroviral therapy (ART) drugs from a common source. This common source can be any country that can provide these drugs, so that they have a market with a large access. That will facilitate Asia-Pacific regional companies to come up. India can do it for some time but we need other companies also, in other countries. For example, countries like India, China and Thailand should do drug procurement together. Then they will actually be able to have a large market, and essential drugs can be purchased cheaply.”

When essential drugs are not made available in large quantities or at affordable prices by multinational companies then governments should issue a compulsory license, Mr Grover argues.

“Drugs for treating hepatitis C – such as the pegylated interferons – are not readily available at affordable prices. We need to use compulsory licensing, or pre-/post-grant opposition procedures to block patents being granted, and allow flexibilities to be used optimally. Any pressure against using flexibilities must be resisted. Compulsory licensing should be made available, without any pressure from the developed countries.”

“Another major issue is the criminalization of key populations affected by HIV. We need to think of decriminalization of same-sex relations, possession and/or consumption of drugs, as well as sex work.

“There are certain measures that can be taken immediately without changing the law, such as harm reduction measures. We also need to push for changing the laws at a suitable level. Even if we do not decriminalize, for the sake of health the law will allow delivery of services to key populations. All health services should be availed without any interference from the government and we need to empower the communities so that they can fight for it.”

“Good things have happened in terms of law changes: In India, Hong Kong and Fiji for supportive legal policies towards people who are practicing same sex behaviour. In Singapore they are thinking of legal reforms in relation to drug use. Indonesia is rethinking laws on sex work. We should make sure that people practising these behaviours are not subjected to prosecution and criminal action by the police.”

Anand Grover will be one of the ICAAP plenary speakers in the session entitled ‘Challenging discrimination against key populations in Asia and the Pacific’ on Friday.

Bobby Ramakant, Citizen News Service - CNS
November 2013

Note: This article was first published in 11th ICAAP INSIGHT, the official daily conference newspaper of 11th International Congress on AIDS in Asia and the Pacific (11th ICAAP) in Bangkok, Thailand. This newspaper was managed by Inis Communication and CNS.